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NOTES ON NULLIFICATION. 1 mad. mss. - James Madison, The Writings, vol. 9 (1819-1836) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9.
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NOTES ON NULLIFICATION.1mad. mss.
Altho’ the Legislature of Virginia declared at a late session almost unanimously, that S. Carolina was not supported in her doctrine of nullification by the Resolutions of 1798, it appears that those resolutions are still appealed to as expressly or constructively favoring the doctrine.
That the doctrine of nullification may be clearly understood it must be taken as laid down in the Report of a special committee of the House of Representatives of S. C. in 1828. In that document it is asserted, that a single State has a constitutional right to arrest the execution of a law of the U. S. within its limits; that the arrest is to be presumed right and valid, and is to remain in force unless ¾ of the States, in a Convention, shall otherwise decide.
The forbidding aspect of a naked creed, according to which a process instituted by a single State is to terminate in the ascendancy of a minority of 7, over a majority of 17, has led its partizans to disguise its deformity under the position that a single State may rightfully resist an unconstitutional and tyrannical law of the U. S., keeping out of view the essential distinction between a constitutional right and the natural and universal right of resisting intolerable oppression. But the true question is whether a single state has a constitutional right to annul or suspend the operation of a law of the U. S. within its limits, the State remaining a member of the Union, and admitting the Constitution to be in force.
With a like policy, the nullifiers pass over the state of things at the date of the proceedings of Vira and the particular doctrines and arguments to which they were opposed; without an attention to which the proceedings in this as in other cases may be insecure agst a perverted construction.
It must be remarked also that the champions of nullification, attach themselves exclusively to the 3. Resolution, averting their attention from the 7. Resolution which ought to be coupled with it, and from the Report also, which comments on both, & gives a full view of the object of the Legislature on the occasion.
Recurring to the epoch of the proceedings, the facts of the case are that Congs had passed certain acts, bearing the name of the alien and sedition laws, which Virg. & some of the other States, regarded as not only dangerous in their tendency, but unconstitutional in their text; and as calling for a remedial interposition of the States. It was found also that not only was the constitutionality of the acts vindicated by a predominant party, but that the principle was asserted at the same time, that a sanction to the acts given by the supreme Judicial authority of the U. S. was a bar to any interposition whatever on the part of the States, even in the form of a legislative declaration that the acts in question were unconstitutional.
Under these circumstances, the subject was taken up by Virga. in her resolutions, and pursued at the ensuing session of the Legislature in a comment explaining and justifying them; her main and immediate object, evidently being, to produce a conviction everywhere, that the Constitution had been violated by the obnoxious acts and to procure a concurrence and co-operation of the other States in effectuating a repeal of the acts. She accordingly asserted and offered her proofs at great length, that the acts were unconstitutional. She asserted moreover & offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the govt of the U. S. was responsible, and otherwise as specially provided by the Constitution; and further, that the States, in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which, however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and, as such, possessed an authority paramount to it.
In this view of the subject there is nothing which excludes a natural right in the States individually, more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.
But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.
And what is the text in the proceedings of Virginia which this spurious doctrine of nullification claims for its parentage? It is found in the 3d of the Resolutions of -98, which is in the following words.
“That in case of a deliberate, a palpable & dangerous exercise of powers not granted by the [constitutional] compact, the States who are parties thereto have a right and are in duty bound to interpose for arresting the progress of the evil, & for maintaining within their respective limits, the authorities rights & liberties appertaining to them.”
Now is there anything here from which a single State can infer a right to arrest or annul an act of the General Govt which it may deem unconstitutional? So far from it, that the obvious & proper inference precludes such a right on the part of a single State; plural number being used in every application of the term.
In the next place, the course & scope of the reasoning requires that by the rightful authority to interpose in the cases & for the purposes referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constn, the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities. The resolution derives the asserted right of interposition for arresting the progress of usurpations by the Federal Govt from the fact, that its powers were limited to the grant made by the States; a grant certainly not made by a single party to the grant, but by the parties to the compact containing the grant. The mode of their interposition, in extraordinary cases, is left by the Resolution to the parties themselves; as the mode of interposition lies with the parties to other Constitutions, in the event of usurpations of power not remediable, under the forms and by the means provided by the Constitution. If it be asked why a claim by a single party to the constitutional compact, to arrest a law, deemed by it a breach of the compact, was not expressly guarded agst the simple answer is sufficient that a pretension so novel, so anomalous & so anarchical, was not & could not be anticipated.
In the third place, the nullifying claim for a single State is probably irreconcilable with the effect contemplated by the interposition claimed by the Resolution for the parties to the Constitution namely that of “maintaining within the respective limits of the States the authorities rights & liberties appertaining to them.” Nothing can be more clear than that these auths &c., &c., of the States, in other words, the authority & laws of the U. S. must be the same in all; or that this cannot continue to be the case, if there be a right in each to annual or suspend within itself the operation of the laws & authority of the whole. There cannot be different laws in different states on subjects within the compact without subverting its fundamental principles, and rendering it as abortive in practice as it would be incongruous in theory. A concurrence & co-operation of the States in favor of each, would have the effect of preserving the necessary uniformity in all, which the Constitution so carefully & so specifically provided for in cases where the rule might be in most danger of being violated. Thus the citizens of every State are to enjoy reciprocally the privileges of citizens in every other State. Direct taxes are to be apportioned on all, according to a fixed rule. Indirect taxes are to be the same in all the States. The duties on imports are to be uniform: No preference is to be given to the ports of one State over those of another. Can it be believed, that with these provisions of the Constn illustrating its vital principles fully in view of the Legislature of Virginia, that its members could in the Resolution quoted, intend to countenance a right in a single State to distinguish itself from its co-States, by avoiding the burdens, or restrictions borne by them; or indirectly giving the law to them.
These startling consequences from the nullifying doctrine have driven its partizans to the extravagant presumption that no State would ever be so unreasonable, unjust & impolitic as to avail itself of its right in any case not so palpably just and fair as to ensure a concurrence of the others, or at least the requisite proportion of them.
Omitting the obvious remark that in such a case the law would never have been passed or immediately repealed; and the surprize that such a defence of the nullifying right should come from S. C. in the teeth & at the time of her own example, the presumption of such a forbearance in each of the States, or such a pliability in all, among 20 or 30 independent sovereignties, must be regarded as a mockery by those who reflect for a moment on the human character, or consult the lessons of experience, not the experience of other countries & times, but that among ourselves; and not only under the former defective Confederation, but since the improved system took place of it. Examples of differences, persevering differences among the States on the constitutionality of Federal acts, will readily occur to every one; and which would, e’er this, have defaced and demolished the Union, had the nullifying claim of S. Carolina been indiscriminately exercisable. In some of the States, the carriage-tax would have been collected, in others unpaid. In some, the tariff on imports would be collected; in others, openly resisted. In some, lighthouses wd be established; in others denounced. In some States there might be war with a foreign power; in others, peace and commerce. Finally, the appellate authority of the Supreme Court of the U. S. would give effect to the Federal laws in some States, whilst in others they would be rendered nullities by the State Judiciaries. In a word, the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a deadly poison.
Thus, from the 3d. resoln itself, whether regard be had to the employment of the term States in the plural number, the argumentative use of it, or to the object namely the “maintaining the authority & rights of each, which must be the same in all as in each, it is manifest that the adequate interposition to which it relates, must be not a single, but a concurrent interposition.
If we pass from the 3d to the 7th Resolution, which, tho’ it repeats and re-enforces the 3d and which is always skipped over by the nullifying commentators, the fallacy of their claim will at once be seen. The resolution is in the following words. [“That the good people of the commonwealth having ever felt and continuing to feel the most sincere affection to their brethren of the other states, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each for co-operating with this state in maintaining unimpaired the authorities, rights, and liberties reserved in the states respectively or to the people.”1 ] Here it distinctly appears, as in the 3d reoln that the course contemplated by the Legislature, “for maintaining the authorities, rights, & liberties reserved to the States respectively,” was not a solitary or separate interposition, but a co-operation in the means necessary & proper for the purpose.
If a further elucidation of the view of the Legislature could be needed, it happens to be found in its recorded proceedings. In the 7th Resolution as originally proposed, the term “unconstitutional,” was followed by null void, &c. These added words being considered by some as giving pretext for some disorganizing misconstruction, were unanimously stricken out, or rather withdrawn by the mover of the Resolutions.
An attempt has been made, by ascribing to the words stricken out, a nullifying signification, to fix on the reputed draftsman of the Resolution the character of a nullifier. Could this have been effected, it would only have vindicated the Legislature the more effectually from the imputation of favoring the doctrine of S. Carolina. The unanimous erasure of nullifying expressions was a protest by the H. of Delegates, in the most emphatic form against it.
But let us turn to the “Report,” which explained and vindicated the Resolutions; and observe the light in which it placed first the third and then the 7th1
It must be recollected that this Document proceeded from Representatives chosen by the people some months after the Resolutions had been before them, with a longer period for manifesting their sentiments before the Report was adopted; and without any evidence of disapprobation in the Constituent Body. On the contrary, it is known to have been recd by the Republican party, a decided majority of the people, with the most entire approbation. The Report therefore must be regarded as the most authoritative evidence of the meaning attached by the State to the Resolutions. This consideration makes it the more extraordinary, and let it be added the more inexcusable, in those, who in their zeal to extract a particular meaning from a particular resolution, not only shut their eyes to another Resolution, but to an authentic exposition of both.
And what is the comment of the Report on that particular resolution?, namely, the 3d
In the first place, it conforms to the resolution in using the term which expresses the interposing authy of the States, in the plural number States, not in the singular number State. It is indeed impossible not to perceive that the entire current & complexion of the observations explaining & vindicating the resolns. imply necessarily, that by the interposition of the States for arresting the evil of usurpation, was meant a concurring authy. not that of a single state; whilst the collective meaning of the term, gives consistency & effect to the reasoning & the object.
But besides this general evidence that the Report in the invariable use of the plural term States, withheld from a single State the right expressed in the Resoln. a still more precise and decisive inference, to the same effect, is afforded by several passages in the document.
Thus the report observes “The States then being the parties to the constl compact, and in their highest sovereign capacity, it follows of necessity, that there can be no tribunal above their authy to decide in the last resort, whether the compact made by them be violated; and, consequently that as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to require their interposition.”
Now apart from the palpable insufficiency of an interposition by a single State to effect the declared object of the interposition namely, to maintain authorities & rights which must be the same in all the States, it is not true that there would be no tribunal above the authority of a state as a single party; the aggregate authority of the parties being a tribunal above it to decide in the last resort.
Again the language of the Report is, “If the deliberate exercise of dangerous powers palpably withheld by the Constitution could not justify the parties to it in interposing even so far as to arrest the progress of the evil, & thereby preserve the Constitun. itself, as well as to provide for the safety of the parties to it, there wd be an end to all relief from usurped power”—Apply here the interposing power of a single State, and it would not be true that there wd be no relief from usurped power. A sure & adequate relief would exist in the interposition of the States, as the co-parties to the Constitution, with a power paramount to the Constn itself.
It has been said that the right of interposition asserted for the states by the proceedings of Virginia could not be meant a right for them in their collective character of parties to and creators of the Constitution, because that was a right by none denied. But as a simple truth or truism, its assertion might not be out of place when applied as in the resolution, especially in an avowed recurrence to fundamental principles, as in duty called for by the occasion. What is a portion of the Declaration of Independence but a series of simple and undeniable truths or truisms? what but the same composed a great part of the Declarations of Rights prefixed to the state constitutions? It appears, however, from the report itself, which explains the resolutions, that the last resort claimed for the Supreme Court of the United States, in the case of the alien and sedition laws, was understood to require a recurrence to the ulterior resort in the authority from which that of the court was derived. “But, (continues the Report) it is objected1 that the judicial authority is to be regarded as the sole expositor of the Constn in the last resort.”
In answering this objection the Report observes, “that however true it may be that the judicial Dept, in all questions submitted to it by the forms of the Constn. to decide in the last resort, this resort must necessarily not be the last—in relation to the rights of the parties to the constl compact from which the Judicial as well as the other Departments hold their delegated trusts. On any other hypothesis, the Delegation of judicial power wd annual the authy delegating it, and the concurrence of this Dept with the others in usurped power, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constiti which all were instituted to preserve.” Again observes the report, “The truth declared in the resolution being established, the expediency of making the declaration at the present day may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles is solemnly enjoined by most of the State constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy, to which republics are liable as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines, not unfrequent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed as unreasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time, perhaps, more necessary than at present.”
Who can avoid seeing the necessity of understanding by the “parties” to the constl. compact, the authority, which made the compact and from which all the Depts held their delegated trusts. These trusts were certainly not delegated by a single party. By regarding the term parties in its plural, not individual meaning, the answer to the objection is clear and satisfactory. Take the term as meaning a party, and not the parties, and there is neither truth nor argument in the answer. But further, on the hypothesis, that the rights of the parties meant the rights of a party, it wd not be true as affirmed by the Report, that “the Delegation of Judl. power wd annul the authy delegating it, and that the concurrence of this Dept with others in usurped power might subvert for ever, & beyond the reach of any rightful remedy, the very Constitution wch all were instituted to preserve.” However deficient a remedial right in a single State might be to preserve the Constn against usurped power an ultimate and adequate remedy wd. always exist in the rights of the parties to the Constn in whose hands the Constn is at all times but clay in the hands of the potter, and who could apply a remedy by explaing amendg, or remakg it, as the one or the other mode might be the most proper remedy.
Such being the comment of the Report on the 3d Resolution, it fully demonstrates the meaning attached to it by Virginia when passing it, and rescues it from the nullifying misconstruction into which the Resolution has been distorted.
Let it next be seen, how far the comment of the Rept. on the 7th Resoln. above inserted accords with that on the 3d.; and that this may the more conveniently be scanned by every eye, the comment is subjoined at full length.
[“The fairness and regularity of the course of proceedings here pursued have not protected it against objections even from sources too respectable to be disregarded.
“It has been said that it belongs to the judiciary of the United States, and not to the state legislatures, to declare the meaning of the federal Constitution.
“But a declaration that proceedings of the federal government are not warranted by the Constitution, is a novelty neither among the citizens nor among the legislatures of the states; are not the citizens or the Legislature of Virginia singular in the example of it.
“Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the federal government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations in such cases are expressions of opinions, unaccompanied with any other effect than what they may produce on opinion by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expressions of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, while that will and that opinion continue unchanged.
“And if there be no impropriety in declaring the unconstitutionality of proceedings in the federal government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight that cannot be denied to it, from the relation of the state legislatures to the federal Legislature, as the immediate constituents of one of its branches.
“The legislatures of the states have a right also to originate amendments to the Constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states or parts of states, the legislatures of the states concerned are, as well as Congress, to concur in the measure. The states have a right also to enter into agreements or compacts, with the consent of Congress. In all such cases, a communication among them results from the object which is common to them.
“It is lastly to be seen whether the confidence expressed by the resolution, that the necessary and proper measures would be taken by the other states for co-operating with Virginia in maintaining the rights reserved to the states or to the people, be in any degree liable to the objections which have been raised against it.
“If it be liable to objection, it must be because either the object or the means are objectionable.
“The object being to maintain what the Constitution has ordered, is in itself a laudable object.
“The means are expressed in the terms ‘the necessary and proper measures.’ A proper object was to be pursued by means both necessary and proper.
“To find an objection, then, it must be shown that some meaning was annexed to these general terms which was not proper; and, for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the term could refer.
“In the example given by the state, of declaring the alien and sedition acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported, too, by the numerous applications flowing immediately from the people, it can scarcely be doubted that these simple means would have been as sufficient as they are unexceptionable.
“It is no less certain that other means might have been employed which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or they might have represented to their respective senators in Congress their wish that two thirds thereof would propose an explanatory amendment to the Constitution; or two thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.
“These several means, though not equally eligible in themselves, nor probably to the states, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states a choice among the farther means that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.
“These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten, that among the arguments addressed to those who apprehended danger to liberty from the establishment of the general government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments between the people and that government, to the vigilance with which they would descry the first symptoms of usurpation, and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one then to recommend the establishment of the Constitution, it must be a proper one now to assist in its interpretation.
“The only part of the two concluding resolutions that remains to be noticed, is the repetition in the first of that warm affection to the Union and its members, and of that scrupulous fidelity to the Constitution, which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those who have listened to the suggestion can only be left to their own recollection of the part which this state has borne in the establishment of our national independence, in the establishment of our national Constitution, and in maintaining under it the authority and laws of the Union, without a single exception of internal resistance or commotion. By recurring to these facts, they will be able to convince themselves that the representations of the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism than their own consciousness and the justice of an enlightened public, who will perceive, in the resolutions themselves, the strongest evidence of attachment both to the Constitution and to the Union, since it is only by maintaining the different governments and departments within their respective limits that the blessings of either can be perpetuated.”]
Here is certainly not a shadow of countenance to the doctrine of nullification. Under every aspect, it enforces the arguments and authority agst such an apocryphal version of the text.
From this view of the subject, those who will duly attend to the tenour of the proceedings of Virga and to the circumstances of the period when they took place will concur in the fairness of disclaiming the inference from the undeniableness of a truth, that it could not be the truth meant to be asserted in the Resoln. The employment of the truth asserted, and the reasons for it, are too striking to be denied or misunderstood.
More than this, the remark is obvious, that those who resolve the nullifying claim into the natural right to resist intolerable oppression, are precluded from inferring that to be the right meant by the Resoln, since that is as little denied, as the paramountship of the authy, creating a Constn over an authy derived from it.
The true question therefore is whether there be a constitutional right in a single state to nullify a law of the U. S. We have seen the absurdity of such a claim in its naked and suicidal form. Let us turn to it as modified by S. C., into a right in every State to resist within itself, the execution of a Federal law deemed by it to be unconstitutional; and to demand a Convention of the States to decide the question of constitutionality, the annulment of the law to continue in the mean time, and to be permanent, unless ¾ of the states concur in over-ruling the annulment.
Thus, during the temporary nullification of the law, the results would be the same from those proceeding from an unqualified nullification, and the result of a convention might be, that 7 out of the 24 states, might make the temporary results permanent. It follows, that any State which could obtain the concurrence of six others, might abrogate any law of the U. S. constructively whatever, and give to the Constitution any shape they please, in opposition to the construction and will of the other seventeen, each of the 17 having an equal right & authority with each of the 7. Every feature in the Constitution, might thus be successively changed; and after a scene of unexampled confusion & distraction, what had been unanimously agreed to as a whole, would not as a whole be agreed to by a single party. The amount of this modified right of nullification is, that a single State may arrest the operation of a law of the United States, and institute a process which is to terminate in the ascendency of a minority over a large majority, in a Republican System, the characteristic rule of which is that the major will is the ruling will. And this newfangled theory is attempted to be fathered on Mr. Jefferson the apostle of republicanism, and whose own words declare that “acquiescence in the decision of the majority is the vital principle of it.” [See his Inaugural Address.]
Well might Virginia declare, as her Legislature did by a resolution of 1833 “that the resolutions of 98-99, gave no support to the nullifying doctrine of South Carolina. And well may the friends of Mr. J. disclaim any sanction to it or to any constitutional right of nullification from his opinions. His memory is fortunately rescued from such imputations, by the very Document procured from his files and so triumphantly appealed to by the nullifying partisans of every description. In this Document, the remedial right of nullification is expressly called a natural right, and, consequently, not a right derived from the Constitution, but from abuses or usurpations, releasing the parties to it from their obligation.1
It is said that in several instances the authority & laws of the U. S. have been successfully nullified by the particular States. This may have occurred possibly in urgent cases, and in confidence that it would not be at variance with the construction of the Fedl Govt or in cases where, operating within the Nullifying State alone it might be connived at as a lesser evil than a resort to force; or in cases not falling within the Fedl jurisdiction; or finally in cases, deemed by the States, subversive of their essential rights, and justified therefore, by the natural right of self-preservation. Be all this as it may, examples of nullification, tho’ passing off witht any immediate disturbance of the public order, are to be deplored, as weakeng the com̃on Govt. and as undermining the Union. One thing seems to be certain, that the States which have exposed themselves to the charge of nullification, have, with the exception of S. C., disclaimed it as a constitutional right, and have moreover protested agst. it as modified by the process of South Carolina.
The conduct of Pena. and the opinions of Judge McKean & Tilgman have been particularly dwelt on by the nullifiers. But the final acquiescence of the state in the authy of the Fedl Judiciary transfers their authy to the other scale, and it is believed that the opinions of the two judges, have been superseded by those of their brethren, which have been since & at the present time are, opposed to them.1
Attempts have been made to shew that the resolutions of Virginia contemplated a forcible resistance to the alien & sedt laws and as evidence of it, the laws relating to the armory, and a Habs corpus for the protection of members of her Legislature, have been brought into view. It happens however, as has been ascertained by the recorded dates that the first of these laws was enacted prior to the al. & sed. laws. As to the last, it appears that it was a general law, providing for other emergencies as well as federal arrests and its applicability never tested by any occurrence under the al. & sedn. laws. The law did not necessarily preclude an acquiescence in the supervising decision of the Fedl Judy shd that not sustain the Habs. corps which it might be calculated would be sustained. And all must agree, that cases might arise, of such violations of the security & privileges of representatives of the people, as would justify the states in a resort to the natural law of self-preservation. The extent of the privileges of the fedl & State representatives of the people, agst criminal charges by the 2 authorities reciprocally, involves delicate questions which it may be better to leave for those who are to decide on them, than unnecessarily to discuss them in advance. The moderate views of Va. on the critical occasion of the al. & sed. laws, are illustrated by the terms of the 7th Resol. with an eye to which the 3d Resol. ought always to be expounded, by the unanimous erasure of the terms “null void” &c., from the 7th art. as it stood; and by the condemnation & imprisonment of Callender under the law, without the slightest opposition on the part of the state. So far was the State from countenancing the nullifying doctrine, that the occasion was viewed as a proper one for exemplifying its devotion to public order, and acquiescence in laws which it deemed unconstitutional, whilst those laws were not constitutionally repealed. The language of the Govr in a letter to a friend, will best attest the principles & feelings which dictated the course pursued on the occasion.1
It is sometimes asked in what mode the States could interpose in their collective character as parties to the Constitution agst usurped power. It was not necessary for the object & reasoning of the resolns & report, that the mode should be pointed out. It was sufficient to shew that the authy to interpose existed, and was a resort beyond that of the Supreme Court of the U. S. or any authy derived from the Constitn. The authy. being plenary, the mode was of its own choice, and it is obvious, that, if employed by the States as coparties to and creators of the Constn it might either so explain the Constn or so amend it as to provide a more satisfactory mode within the Constn itself for guarding it agst constructive or other violations.
It remains however for the nullifying expositors to specify the right & mode of interposition which the resolution meant to assign to the States individually. They cannot say it was a natural right to resist intolerable oppression; for that was a right not less admitted by all than the collective right of the States as parties to the Const. the nondenial of which was urged as a proof that it could not be meant by the Resoln.
They cannot say that the right meant was a Constitl right to resist the constitutional authy for that is a construction in terms, as much as a legal right to resist a law.
They can find no middle ground, between a natural and a constitutional right, on which a right of nullifying interposition can be placed; and it is curious to observe the awkwardness of the attempt, by the most ingenious advocates [Upshur and Berrian].
They will not rest the claim as modified by S. C. for that has scarce an advocate out of the State, and owes the remnant of its popularity there to the disguise under which it is now kept alive; some of the leaders of the party admitting its indefensibility, in its naked shape.
The result is, that the nullifiers, instead of proving that the Resoln meant nullification, would prove that it was altogether without meaning.
It appears from this Comment, that the right asserted and exercised by the Legislature, to declare an act of Congs. unconstitutional had been denied by the Defenders of the alien & sedition acts as an interference with the Judicial authority; and, consequently, that the reasonings employed by the Legislature, were called for by the doctrines and inferences drawn from that authority, and were not an idle display of what no one denied.
It appears still farther, that the efficacious interposition contemplated by the Legislature; was a concurring and co-operating interposition of the States, not that of a single State.
It appears that the Legislature expressly disclaimed the idea that a declaration of a State, that a law of the U. S. was unconstitutional, had the effect of annulling the law.
It appears that the object to be attained by the invited cooperation with Virginia was, as expressed in the 3d. & 7th. Resol. to maintain within the several States their respective auths. rights, & liberties, which could not be constitutionally different in different States, nor inconsistent with a sameness in the authy. & laws of the U. S. in all & in each.
It appears that the means contemplated by the Legislature for attaining the object, were measures recognised & designated by the Constitution itself.1
Lastly, it may be remarked that the concurring measures of the states, without any nullifying interposition whatever did attain the contemplated object; a triumph over the obnoxious acts, and an apparent abandonment of them for ever.
It has been said or insinuated that the proceedings of Virgs. in 98-99, had not the influence ascribed to them in bringing about that result. Whether the influence was or was not such as has been claimed for them, is a question that does not affect the meaning & intention of the proceedings. But as a question of fact, the decision may be safely left to the recollection of those who were co-temporary with the crisis, and to the researches of those who were not, taking for their guides the reception given to the proceedings by the Repubn. party every where, and the pains taken by it, in multiplying republications of them in newspapers and in other forms.
What the effect might have been if Virga. had remained patient & silent, and still more if she had sided with S. Carolina, in favoring the alien & sedition acts. can be but a matter of conjecture.
What would have been thought of her if she had recommended the nullifying project of S. C. may be estimated by the reception given to it under all the factitious gloss, and in the midst of the peculiar excitement of which advantage has been taken by the partizans of that anomalous conceit.
It has been sufficiently shown, from the language of the Report, as has been seen, that the right in the States to interpose declarations & protests, agst unconstitutional acts of Congress, had been denied; and that the reasoning in the Resolutions was called for by that denial. But the triumphant tone, with which it is affirmed & reiterated that the resolutions, must have been directed agst what no one denied, unless they were meant to assert the right of a single State to arrest and annul acts of the federal Legislature, makes it proper to adduce a proof of the fact that the declaratory right was denied, which, if it does not silence the advocate of nullification, must render every candid ear indignant at the repetition of the untruth.
The proof is found in the recorded votes of a large and respectable portion of the House of Delegates, at the time of passing the report.
A motion [see the Journal] offered at the closing scene affirms “that protests made by the Legislature of this or any other State agst. particular acts of Congs. as unconstitutional accompanied with invitations to other States, to join in such protests, are improper & unauthorized assumptions of power not permitted, nor intended to be permitted to the State Legislatures. And inasmuch as correspondent sentiments with the present, have been expressed by those of our sister States who have acted on the Resolutions [of 1798], Resolved therefore that the present General Assembly convinced of the impropriety of the Resolutions of the last Assembly, deem it inexpedient farther to act on the said Resolutions.”
On this Resolution, the votes, according to the yeas & nays were 57, of the former, 98 of the latter.
Here then within the H. of Delegates itself more than ⅓ of the whole number denied the right of the State Legislature to proceed by acts merely declaratory agst. the constitutionality of acts of Congs and affirmed moreover that the states who had acted on the Resols of Va. entertained the same sentiments. It is remarkable that the minority, who denied the right of the legislatures even to protest, admitted the right of the states in the capacity of parties, without claiming it for a single state.
With this testimony under the eye it may surely be expected that it will never again be said that such a right had never been denied, nor the pretext again resorted to that without such a denial, the nullifying doctrine alone could satisfy the true meaning of the Legislature. [See the instructions to the members of Congress passed at the same session, which do not squint at the nullifying idea; see also the protest of the minority in the Virga. Legislare. and the Report of the Comee of Congs. on the proceedings of Virginia.]
It has been asked whether every right has not its remedy, and what other remedy exists under the Govt. of the U. S. agst. usurpations of power, but a right in the States individually to annul and resist them.
The plain answer is, that the remedy is the same under the government of the United States as under all other Govts. established & organized on free principles. The first remedy is in the checks provided among the constituted authorities; that failing the next is in the influence of the Ballot-boxes & Hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it. Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements.
Does not this view of the case, equally belong to every one of the States, Virginia for example.
Should the constituted authorities of the State unite in usurping oppressive powers; should the constituent Body fail to arrest the progress of the evil thro’ the elective process according to the forms of the Constitution; and should the authority which is above that of the Constitution, the majority of the people, inflexibly support the oppression inflicted on the minority, nothing would remain for the minority, but to rally to its reserved rights (for every citizen has his reserved rights, as exemplified in Declarations prefixed to most of the State constitutions), and to decide between acquiescence & resistance, according to the calculation above stated.
Those who question the analogy in this respect between the two cases, however different they may be in some other respects, must say, as some of them, with a boldness truly astonishing do say, that the Constitution of the U. S. which as such, and under that name, was presented to & accepted by those who ratified it; which has been so deemed & so called by those living under it for nearly half a century; and, as such sworn to by every officer, state as well as federal, is yet no Constitution, but a treaty, a league, or at most a confederacy among nations, as independent and sovereign, in relation to each other, as before the charter which calls itself a Constitution was formed.
The same zealots must again say, as they do, with a like boldness & incongruity that the Govt of the U. S. wch has been so deemed & so called from its birth to the present time; which is organized in the regular forms of Representative Govts. and like them operates directly on the individuals represented; and whose laws are declared to be the supreme law of the land, with a physical force in the govt for executing them, is yet no govt. but a mere agency, a power of attorney, revocable at the will of any of the parties granting it.
Strange as it must appear, there are some who maintain these doctrines, and hold this language: and what is stranger still, denounce those as heretics and apostates who adhere to the language & tenets of their fathers, and this is done with an exulting question whether every right has not its remedy; and what remedy can be found against federal usurpations, other than that of a right in every State to nullify & resist the federal acts at its pleasure?
Yes, it may be safely admitted that every right has its remedy; as it must be admitted that the remedy under the Constitution lies where it has been marked out by the Constitution; and that no appeal can be consistently made from that remedy by those who were and still profess to be parties to it, but the appeal to the parties themselves having an authority above the Constitution or to the law of nature & of nature’s God.
It is painful to be obliged to notice such a sophism as that by which this inference is assailed. Because an unconstitutional law is no law, it is alledged that it may be constitutionally disobeyed by all who think it unconstitutional. The fallacy is so obvious, that it can impose on none but the most biassed or heedless observers. It makes no distinction where the distinction is obvious, and essential, between the case of a law confessedly unconstitutional, and a case turning on a doubt & a divided opinion as to the meaning of the Constitution; on a question, not whether the Constitution ought or ought not to be obeyed; but on the question, what is the Constitution. And can it be seriously & deliberately maintained, that every individual or every subordinate authy or every party to a compact, has a right to take for granted, that its construction is the infallible one, and to act upon it agst. the construction of all others, having an equal right to expound the instrument, nay against the regular exposition of the constituted authorities, with the tacit sanction of the community. Such a doctrine must be seen at once to be subversive of all constitutions, all laws, and all compacts. The provision made by a Constn. for its own exposition, thro’ its own authorities & forms, must prevail whilst the Constitution is left to itself by those who made it; or until cases arise which justify a resort to ultra-constitutional interpositions.
The main pillar of nullification is the assumption that sovereignty is a unit, at once indivisible and unalienable; that the states therefore individually retain it entire as they originally held it, and, consequently that no portion of it can belong to the U. S.
But is not the Constn. itself necessarily the offspring of a sovn authy? What but the highest pol: authy. a sovereign authy, could make such a Constn.? a constn. wch. makes a Govt.; a Govt. which makes laws; laws which operate like the laws of all other govts. by a penal & physical force, on the individuals subject to the laws; and finally laws declared to be the Supreme law of the land; anything in the Constn or laws of the individual State notwithstanding.
And where does the sovy. which makes such a Constn reside. It resides not in a single state but in the people of each of the several states, uniting with those of the others in the express & solemn compact which forms the Constn To the extent of that compact or Constitution therefore, the people of the several States must be a sovereign as they are a united people.
In like manner, the constns. of the States, made by the people as separated into States, were made by a sovereign authy by a sovereignty residing in each of the States, to the extent of the objects embraced by their respective constitutions. And if the states be thus sovereign, though shorn of so many of the essential attributes of sovereignty, the U. States by virtue of the sovereign attributes with wch they are endowed, may, to that extent, be sovereign, tho’ destitute of the attributes of which the States are not shorn.
Such is the political system of the U. S. de jure & de facto; and however it may be obscured by the ingenuity and technicalities of controversial commentators, its true character will be sustained by an appeal to the law and the testimony of the fundamental charter.
The more the pol: system of the U. S. is fairly examined, the more necessary it will be found, to abandon the abstract and technical modes of expounding & designating its character; and to view it as laid down in the charter which constitutes it, as a system, hitherto without a model; as neither a simple or a consolidated Govt. nor a Govt. altogether confederate; and therefore not to be explained so as to make it either, but to be explained and designated, according to the actual division and distribution of political power on the face of the instrument.
A just inference from a survey of this polit: system is that it is a division and distribution of pol: power, nowhere else to be found; a nondescript, to be tested and explained by itself alone; and that it happily illustrates the diversified modifications of which the representative principle of republicanism is susceptible with a view to the conditions, opinions, and habits of particular communities.
That a sovereignty should have even been denied to the States in their united character, may well excite wonder, when it is recollected that the Constn which now unites them, was announced by the convn which formed it, as dividing sovereignty between the Union & the States; [see letter of the Presdt of the Convention (W.) to the old Congs1 ] that it was presented under that view, by contemporary expositions recommendg it to the ratifying authorities [see Federt and other proofs]; that it is proved to have been so understood by the language which has been applied to it constantly & notoriously; that this has been the doctrine & language, until a very late date, even by those who now take the lead in making a denial of it the basis of the novel notion of nullification. [See the Report to the Legisl. of S. Carola. in 1828.] So familiar is sovereignty in the U. S. to the thoughts, views & opinions even of its polemic adversaries, that Mr. Rowan, in his elaborate speech in support of the indivisibility of sovereignty, relapsed before the conclusion of his argument into the idea that sovereignty was partly in the Union, partly in the States. [See his speech in the Richmond Enquirer of the —.] Other champions of the Rights of the States among them Mr. J-n might be appealed to, as bearing testimony to the sovereignty of the U. S. If Burr had been convicted of acts defined to be treason, wch it is allowed can be committed only agst a sovern. authy who wd. then have pleaded the want of sovy in the U. S. Quere. if there be no sovy. in the U. S. whether the crime denominated treason might not be committed, without falling within the jurisdiction of the States, and consequently, with impunity?
What seems to be an obvious & indefeasible proof that the people of the individual States, as composing the U. States must possess a sovereignty, at least in relation to foreign sovereigns is that in that supposition only, foreign Govts. would be willing or expected to maintain international relations with the U. S. Let it be understood that the Govt at Washington was not a national Govt representing a sovereign authy; and that the sovereignty resided absolutely & exclusively in the several States, as the only sovereigns & nations in our political system, and the diplomatic functionaries at the seat of the Fedl Govt would be obliged to close their communications with the Secy of State, and with new commissions repair to Columbia, in S. C. and other seats of the State Govts. They could no longer, as the Repts of a sovereign authy hold intercourse with a functionary who was but an agent of a self-called Govt which was itself but an agent, representing no sovereign authority; not of the States as separate sovereignties, nor a sovereignty in the U. S. which had no existence. For a like reason, the Plenipotentiaries of the U. S. at foreign courts, would be obliged to return home unless commissioned by the individual States. With respect to foreign nations, the confederacy of the States was held de facto to be a nation, or other nations would not have held national relations with it.
There is one view of the subject which ought to have its influence on those who espouse doctrines which strike at the authoritative origin and efficacious operation of the Govt of the U. States. The Govt of the U. S. like all Govts free in their principles, rests on compact; a compact, not between the Govt & the parties who formed & live under it; but among the parties themselves, and the strongest of Govts. are those in which the compacts were most fairly formed and most faithfully executed.
Now all must agree that the compact in the case of the U. S. was duly formed, and by a competent authority. It was formed, in fact by the people of the several States in their highest sovereign authority; an authority which cd have made the compact a mere league, or a consolidation of all entirely into one community. Such was their authy if such had been their will. It was their will to prefer to either the constitutional Govt now existing; and this being undeniably establd. by a competent and even the highest human authy, it follows that the obligation to give it all the effect to which any Govt could be entitled; whatever the mode of its formation, is equally undeniable. Had it been formed by the people of the U. S. as one society, the authority could not have been more competent, than that which did form it; nor wd a consolidation of the people of the States into one people, be different in validity or operation, if made by the aggregate authy of the people of the States, than if made by the plenary sanction given concurrently as it was in their highest sovereign capacity. The Govt whatever it be resulting from either of these processes would rest on an authy. equally competent; and be equally obligatory & operative on those over whom it was established. Nor would it be in any respect less responsible, theoretically and practically, to the constituent body, in the one hypothesis than in the other; or less subject in extreme cases to be resisted and overthrown. The faith pledged in the compact, being the vital principle of all free Govt that is the true test by which pol: right & wrong are to be decided, and the resort to physical force justified, whether applied to the enforcement or the subversion of political power.
Whatever be the mode in which the essential auty estabd. the Constn, the structure of this, the power of this, the rules of exposition, the means of execution, must be the same; the tendency to consol. or dissolution the same. The question, whether we the people means the people in their aggregate capacity, acting by a numerical majy of the whole, or by a majy in each of all the States, the authy being equally valid and binding, the question is interesting, but as an historical fact of merely speculative curiosity.
Whether the centripetal or centrifugal tendency be greatest, is a problem which experience is to decide; but it depends not on the mode of the grant, but the extent and effect of the powers granted. The only distinctive circumstance is in the effect of a dissolution of the system on the resultum of the parties, which, in the case of a system formed by the people, as that of the United States was, would replace the states in the character of separate communities, whereas a system founded by the people, as one community, would, on its dissolution, throw the people into a state of nature.1
In conclusion, those who deny the possibility of a political system, with a divided sovereignty like that of the U. S., must chuse between a government purely consolidated, & an association of Govts. purely federal. All republics of the former character, ancient or modern, have been found ineffectual for order and justice within, and for security without. They have been either a prey to internal convulsions or to foreign invasions. In like manner, all confederacies, ancient or modern, have been either dissolved by the inadequacy of their cohesion, or, as in the modern examples, continue to be monuments of the frailties of such forms. Instructed by these monitory lessons, and by the failure of an experiment of their own (an experiment wch, while it proved the frailty of mere federalism, proved also the frailties of republicanism without the control of a Federal organization),1 the U. S. have adopted a modification of political power, which aims at such a distribution of it as might avoid as well the evils of consolidation as the defects of federation, and obtain the advantages of both. Thus far, throughout a period of nearly half a century, the new and compound system has been successful beyond any of the forms of Govt, ancient or modern, with which it may be compared; having as yet discovered no defects which do not admit remedies compatible with its vital principles and characteristic features. It becomes all therefore who are friends of a Govt based on free principles to reflect, that by denying the possibility of a system partly federal and partly consolidated, and who would convert ours into one either wholly federal or wholly consolidated, in neither of which forms have individual rights, public order, and external safety, been all duly maintained, they aim a deadly blow at the last hope of true liberty on the face of the Earth Its enlightened votaries must perceive the necessity of such a modification of power as will not only divide it between the whole & the parts, but provide for occurring questions as well between the whole & the parts as between the parts themselves. A political system which does not contain an effective provision for a peaceable decision of all controversies arising within itself, would be a Govt in name only. Such a provision is obviously essential; and it is equally obvious that it cannot be either peaceable or effective by making every part an authoritative umpire. The final appeal in such cases must be to the authority of the whole, not to that of the parts separately and independently. This was the view taken of the subject, whilst the Constitution was under the consideration of the people. [See Federalist No. 39.] It was this view of it which dictated the clause declaring that the Constitution & laws of the U. S. should be the supreme law of the Land, anything in the constn or laws of any of the States to the contrary notwithstanding. [See Art. VI.] It was the same view which specially prohibited certain powers and acts to the States, among them any laws violating the obligation of contracts, and which dictated the appellate provision in the Judicial act passed by the first Congress under the Constitution. [See Art. I.] And it may be confidently foretold, that notwithstanding the clouds which a patriotic jealousy or other causes have at times thrown over the subject, it is the view which will be permanently taken of it, with a surprise hereafter, that any other should ever have been contended for.
TO — —.mad. mss.
The letter of Mr. Leigh to the Genl. Assembly presents some interesting views of its important subject & furnishes an excuse for reflections not inapposite to the present juncture.
The precise obligation imposed on a representative, by the instructions of his constituents, still divides the opinions, of distinguished statesmen. This is the case in Great Britain, where such topics have been most discussed. It is also now the case, more or less, and was so, at the first Congress under the present Constitution, as appears from the Register of Debates, imperfectly as they were reported.
It being agreed by all, that whether an instruction be obeyed or disobeyed, the act of the Representative is equally valid & operative, the question is a moral one, between the Representative, and his Constituents. With him, if satisfied, that the instruction expresses the will of his constituents, it must be to decide whether he will conform to an instruction opposed to his judgment or will incur their displeasure by disobeying it and with them to decide in what mode they will manifest their displeasure. In a case necessarily appealing to the conscience of the Representative its paramount dictates must of course be his guide.
It is well known that the equality of the States in the Federal Senate was a compromise between the larger, & the smaller states, the former claiming a proportional representation in both branches of the Legislature, as due to their superior population; the latter, an equality in both, as a safeguard to the reserved sovereignty of the States, an object which obtained the concurrence of members from the larger States. But it is equally true tho’ but little adverted to as an instance of miscalculating speculation that, as soon as the smaller States, had secured more than a proportional share in the proposed Government, they became favorable to augmentations of its powers; & that under the administration of the Govt., they have generally, in contests between it, & the State governments, leaned to the former. Whether the direct effect of instructions which could make the senators dependent on the pleasure of their Constituents, or the indirect effect inferred from such a tenure by Mr. Leigh, would be most favourable, to the General Government, or the state Governments, is a question which not being tested by practice, is left to individual opinions. My anticipations I confess do not accord with that in the letter.
Nothing is more certain than that the tenure of the Senate, was meant as an obstacle to the instability, which not only history, but the experience of our Country, had shewn to be the besetting infirmity of popular Govts. Innovations therefore impairing the stability afforded by that tenure, without some compensating remodification of the powers of the Government, must affect the balance, contemplated by the Constitution.
My prolonged life has made me a witness of the alternate popularity, & unpopularity of each of the great branches of the Federal Government. I have witnessed, also, the vicissitudes, in the apparent tendencies in the Federal & State Governments to encroach each on the authorities of the other, without being able to infer with certainty, what would be the final operation of the causes as heretofore existing; whilst it is far more difficult, to calculate, the mingled & checkered influences, on the future from an expanding territorial Domain; from the multiplication of the parties to the Union, from the great & growing power of not a few of them, from the absence of external danger; from combinations of States in some quarters, and collisions in others, and from questions, incident to a refusal of unsuccessful parties to abide by the issue of controversies judicially decided. To these uncertainties, may be added, the effects of a dense population, & the multiplication, and the varying relations of the classes composing it. I am far however from desponding of the great political experiment in the hands of the American people. Much has already been gained in its favour, by the continued prosperity accompanying it through a period of so many years. Much may be expected from the progress and diffusion of political science in dissipating errors, opposed to the sound principles which harmonize different interests; from the Geographical, commercial, & social ligaments, strengthened as they are by mechanical improvements, giving so much advantage to time over space; & above all, by the obvious & inevitable consequences of the wreck of an ark, bearing as we have flattered ourselves the happiness of our country & the hope of the world. Nor is it unworthy of consideration, that the 4 great religious Sects, running through all the States, will oppose an event placing parts of each under separate Governments.
It cannot be denied that there are in the aspect our country presents, Phenomena of an ill omen, but it wd. seem that they proceed from a coincidence of causes, some transitory, others fortuitous, rarely if ever likely to recur, that of the causes more durable some can be greatly mitigated if not removed by the Legislative authority, and such as may require and be worthy the “intersit” of a higher power, can be provided for whenever, if ever, the public mind may be calm and cool enough for that resort.
[1 ]These notes were written almost entirely in Madison’s own hand and revised by him with the aid of Mrs. Madison and his brother-in-law, John C. Payne.
[1 ]Madison left the quotation to be filled in.
[1 ]Ante, Vol. VI., p. 341.
[1 ]There is a direct proof that the authority of the Supreme Court of the U. S. was understood by the Legislature of Virginia to have been an asserted bar to an interposition by the states agst the al & sed laws.—Madison’s Note.
[1 ]No example of the inconsistency of party zeal can be greater than is seen in the value allowed to Mr. Jefferson’s authority by the nullifying party; while they disregard his repeated assertions of the Federal authority, even under the articles of confederation, to stop the commerce of a refractory State, while they abhor his opinions & propositions on the subject of slavery & overlook his declaration, that in a republick, it is a vital principle that the minority must yield to the majority—they seize on an expression of Mr. Jefferson that nullification is the rightful remedy, as the Shiboleth of their party, & almost a sanctification of their cause. But in addition to their inconsistency, their zeal is guilty of the subterfuge of droping a part of the language of Mr. Jefferson, which shews his meaning to be entirely at variance with the nullifying construction. His words in the document appealed to as the infallible test of his opinions are: [ . . . “but, when powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every state has a natural right in cases not within the compact (casus non fæderis,) to nullify” etc.]
[1 ]The precedents for the nullification doctrine are given in The Genuine Book of Nullification, Charleston, 1831.
[1 ]Madison’s note says: Extract of a letter from Monroe to Madison, dated Albemarle, May 15, 1800: “Besides, I think there is cause to suspect the sedition law will be carried into effect in this state at the approaching federal court, and I ought to be there [Richmond] to aid in preventing trouble. A camp is formed of about 400 men at Warwick, four miles below Richmond, and no motive for it assigned except to proceed to Harper’s Ferry, to sow cabbage-seed. But the gardening season is passing, and this camp remains. I think it possible an idea may be entertained of opposition, and by means whereof the fair prospect of the republican party may be overcast. But in this they are deceived, as certain characters in Richmond and some neighbouring counties are already warned of their danger, so that an attempt to excite a hotwater insurrection will fail.”
[1 ]The following note is marked by Madison as intended to be inserted at this point. Most of it appears, however, embodied in other parts of the essay:
[1 ]Documentary History of the Constitution, ii., 1.
[1 ]See letter of J. M. to D[aniel] W[ebster] on file [March 15, 1833].—Madison’s Note.
The letter is as follows
I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes ‘nullification’ and must hasten the abandonment of ‘Secession.’ But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance recd from certain quarters, is giving it a popular currency here which may influence the approaching elections both for Congress & for the State Legislature. It has gained some advantage also, by mixing itself with the question whether the Constitution of the U. S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.
“It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several States, who were parties to it and therefore made by the States in their highest authoritative capacity. They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers, or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others.
“The Constitution of the U. S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government into the usual Legislative Executive & Judiciary Departments; invests it with specified powers, leaving others to the parties to the Constitution, it makes the Government like other Governments to operate directly on the people; places at its Command the needful Physical means of executing its powers; and finally proclaims its supremacy, and that of the laws made in pursuance of it, over the Constitutions & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the controul of its Constituents, the people & legislatures of the States, and subject to the Revolutionary Rights of the people in extreme cases.
“It might have been added, that whilst the Constitution, therefore, is admitted to be in force, its operation, in every respect must be precisely the same, whether its authority be derived from that of the people, in the one or the other of the modes, in question; the authority being equally Competent in both; and that, without an annulment of the Constitution itself its supremacy must be submitted to.
“The only distinctive effect, between the two modes of forming a Constitution by the authority of the people, is that if formed by them as imbodied into separate communities, as in the case of the Constitution of the U. S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities, that being the Condition in which they entered into the compact; whereas if formed by the people as one community, acting as such by a numerical majority, a dissolution of the compact would reduce them to a state of nature, as so many individual persons. But whilst the Constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact. It must not be forgotten, that compact, express or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism.”—Mad. MSS.
[1 ]The known existence of this controul has a silent influence, which is not sufficiently adverted to in our political discussions, and which has doubtless prevented collisions, in cases which might otherwise have threatened the fabric of the Union. Another preventive resource is in the fact noted by Montesquieu, that if one member of a union become diseased, it is cured by the examples and the frowns of the others, before the contagion can spread.—Madison’s Note.